Sardar Abdul Hameed Khan, J-- This appeal by leave calls in question the judgment and decree passed by the High Court on 25.3.2015, whereby, civil appeal No. 109 of 2007, filed on behalf of the deceased-appellant, now survived through the legal heirs, has been dismissed.
2. The facts in brief are that one, Shafique Ahmed along with other plaintiffs filed a declaratory suit bearing No. 495 on 28.10.2002 for cancellation of the decree dated 27.3.1989 and mutation No. 368 dated 17.4.1998 with the consequential relief of perpetual injunction in respect of the land comprising khewat No. 18, khata No. 35/32, khasra No. 98 measuring 3 kanal 10 marla situate at village Mohri Gojra, Tehsil and District Muzaffarabad in the Court of Senior Civil Judge, Muzaffarabad against the defendant-appellant, (deceased), herein, and others. Another declaratory suit bearing No. 72 on behalf of Ch. Muhammad Iqbal, plaintiff- respondent, herein, was filed in the Court of Senior Civil Judge, Muzaffarabad for cancellation of decree dated 27.3.1989 and mutation No. 368 along with the perpetual injunction in respect of the suit land. During the pendency of the suits, the plaintiffs moved applications for amendments in the plaints to challenge the sale-deed attested on 23.7.2003 executed by the defendant-appellant (deceased) and mutation No. 116 dated 11.8.2003 sanctioned thereof. The proposed amendment sought in the plaints was allowed by the trail Court, whereupon, the amended plaint on behalf of Shafique Ahmed and others was filed on 28.3.2005 and on behalf of Ch. Muhammad Iqbal, plaintiff-respondent, herein, on 30.3.2005. On filing of amended plaints, both the suits were renumbered as No. 45 dated 28.3.2005 and No. 46 dated 30.3.2005., respectively. It was further added in the plaints that khasra No. 98 (old) renumbered during the new settlement record (Misl-e-Haqiat 1998-1999) is recorded as khasra No. 407, measuring 3 kanal 18 marla. It was alleged in the suits filed by the plaintiff that the disputed land comprising khasra No. 98 measuring 3 kanal 10 marla is Shamilad Deh land and entered in the revenue record as {{URDU TEXT}} which is in the use of the whole village proprietary body. It was averred that the defendant-appellant (deceased) obtained a collusive decree while practicing fraud on the basis of cognovit from the Court of Civil Judge, Muzaffarabad on 27.3.1989 and on the basis of the decree got sanctioned mutation No. 368 which is inoperative and against the rights of the plaintiffs and the whole village proprietary body. The learned Civil Judge consolidated both the suits and after necessary proceedings decreed the same through the judgment and decree dated 23.7.2005. Feeling aggrieved, Ch. Maqbool Ahmed (deceased) appellant, herein, filed an appeal before the District Judge, Muzaffarabad which was dismissed on 31.8.2007.
He assailed the judgment of the District Judge, Muzaffarabad by filing second appeal before the Azad Jammu and Kashmir High Court which also met the same fate through the impugned judgment and decree dated 25.3.2015. Hence, this appeal by leave of the Court.
3. Raja Muhammad Hanif Khan, the learned counsel for the appellants, after narration of necessary facts submitted that the land in dispute comprising survey No. 98 (old), 407 (new) though was recorded as Shamilat Deh land in the earlier settlement, however, the aforesaid land remained in the exclusive possession of the appellants as a proportionate share in the Shamilat Deh land. The learned counsel further submitted that over the disputed land there was no graveyard at all. He added that in the new settlement conducted in the year 1998-99, survey No. 98-min (old) measuring 3 kanal 18 marla was marked as survey No. 476 and shown as Shamilat Deh land in the exclusive possession of the appellant (deceased) on the basis of proportionate share in the Shamilat Deh land. The learned counsel further argued that in support of the claim, the certified copy of Misl-e-Haqiat Exb. 'DA', certificate of entitlement and the verification by the Board of Revenue Exb. 'DC' and khasragirdawari Exb. 'DB' were brought on record which shows the exclusive possession of the appellant (deceased) but the trial Court as well as the appellate Court failed to appreciate the evidence in its true perspective. The learned counsel further submitted that the defendant-appellant (deceased) also produced an inspection note of the Civil Judge of the time dated 8.8.1982 as Exb. 'PC' but the Courts below have also not taken into consideration the said document. The learned counsel referred to the Misl-e-Haqiat pertaining to the year 1986 Bk. shows that survey No. 95 measuring 2 kanal 17 marla is recorded as graveyard in the revenue record but the Courts below have not taken into consideration this document. It was forcefully argued by the learned counsel that from the record it is proved that the suit land is neither a graveyard nor the same has ever been used for the common purpose by the village landowners rather it remained in the exclusive possession of the appellant (deceased) within the proportionate share since long and the transaction of the sale-deed and both the impugned mutations as well as the decree passed by the trial Court dated 27.3.1989 on the basis of cognovits/compromise filed by the landowners adjacent to the suit land, is a lawful decree, which merits acceptance. He further averred that the findings recorded by the Courts below are hit by the mischief of misreading and non-reading and requested for acceptance of appeal.
4. Conversely, Syed Nazir Hussain Shah Kazmi, the learned counsel for the defendant-respondent, while controverting the arguments of the learned counsel for the appellants, submitted that the judgments of the Courts below are based on record and true appreciation of evidence, hence, call for no interference by this Court. The learned counsel while referring to Misl-e-Haqiat for the year 1986 Bk. contended that the disputed land was recorded in the revenue record as Shamilat Deh land {{URDU TEXT}} but the defendant-appellant (deceased) got collusive decree from the Court by filing a suit while impleading only two of the landowners as defendants who filed the cognovits/compromise. Thereafter, on the basis of this decree, the defendant-appellant (deceased) got sanctioned the mutation in his favour with the connivance of the revenue officials in which the disputed land was firstly shown in his possession. The learned counsel contended that all the revenue record referred to and relied upon by the counsel for the appellant was got prepared by the defendant-appellant (deceased) after 1989 A.D. on the basis of compromise decree which was nullity in the eye of law. He further submitted that admittedly, the land in dispute is Shamilat Deh land reserved for the graveyard since time immemorial and now it is settled that on the basis of the compromise/cognovits between the parties, no decree regarding the Shamilat Deh land can be passed. The learned counsel submitted that the Courts below while appreciating the evidence in the present lis brought on record have reached the concurrent findings and the concurrent findings recorded by the Courts below based on true appreciation of evidence and the record are immune from interference. The learned counsel has relied upon the cases reported as Walayat Khan vs. Abdul Khaliq & 15 others [2006 SCR 92], Raja Ali Shan vs. Messrs Essem Hotel Limited and others [2007 SCMR 741], Barkat Ali & another vs. Sultan Mehmood & 18 others [2009 SCR 158], Muhammad Tufail & 3 others vs. Muhammad Idress & 2 othes [2015 SCR 672], Khalid Hussain and 3 others vs. Haji Muhammad Rafique and another [PLJ 2008 SC (AJ&K) 18], Shafquat Hayyat & 3 others vs. Muhammad Razzaq & another [2016 SCR 1334] and Kamal Hussain vs. Muhammad Shabir & others [2017 SCR 236]. The learned counsel requested for dismissal of appeal.
5. We have heard the learned counsel for the parties and have perused the record with utmost care. The claim of the plaintiff-respondents, herein, is that the land comprising khasra No. 98 (old) measuring 3 kanal 10 marla is a Shamilat Deh land and entered as such in the revenue record as {{URDU TEXT}} and the nature of the suit land by no means under law can be changed. Against it, the stance taken by the defendant-appellant (deceased) is that he is an owner of the disputed land on the basis of proportionate share as an owner in the village and on the strength of the decree dated 27.3.1989 and mutation No. 368.
6. We have carefully perused the record wherefrom it transpires that the deceased-appellant filed declaratory suit No. 72 on 29.1.1989 before the Sub-Judge, Muzaffarabad with the consequential relief of perpetual injunction pertaining to the land survey No. 98-min (total measuring 4 kanal 11 marla) for a piece of land measuring 5 kanal 1 marla, which was decreed partially on the basis of compromise. The suit for declaration was not allowed, however, the decree for perpetual injunction to the extent of land measuring 3 kanal 10 marla was passed and to the extent of land measuring 1 kanal 11 marla was dismissed on 27.3.1989. This basic decree was later on challenged by Ch. Muhammad Iqbal, respondent, herein, and through another suit filed by Shafique Ahmed and others. It is added that according to the contents of the basic judgment, it is obvious that the decree was passed in pursuance of compromise and on the basis of the contents of the plaint and not on the basis of any record/evidence regarding possession/perpetual injunction, because no record of exclusive possession of the deceased-appellant was annexed, exhibited or tendered by the appellant, wherefrom, the fact of possession could be ascertained. Hence, it is obvious that the appellant was never in possession of the suit land at the time of institution of the suit or at the time of decree dated 27.3.1989, hence, the decree of perpetual injunction was a nullity in the eye of law. It will also not be out of place to mention that no record pertaining to the possession of the appellant on the suit land prior to 1989 is on the file and the record showing possession of the appellant has been recorded in the revenue record on the strength of the decree and the impugned judgment in the record of rights pertaining to the years 1998-99. Hence, it is crystal clear that the decree was not sustainable and the structure of sale-deed etc made on the basis of the said decree is also of no legal value.
7. The perusal of the decree passed by the Sub-Judge dated 27.3.1989 clearly shows that the defendant- appellant filed a suit while impleading only two landowners of the village as defendants and obtained a compromise decree of the disputed land and thereafter, got sanctioned mutation No. 368. Under law, firstly, no declaratory decree can be passed by any Court regarding the Shamilat Deh land without impleading the whole village proprietary body being necessary party as the defendant who are necessary party and secondly it is now settled that regarding the Shamilat Deh land no declaratory decree or a decree for perpetual injunction in favour of some co-sharers of the village on the basis of cognovits/compromise can be passed by a Civil Court. The decree so passed would be a nullity in the eye of law and all the transactions on the basis of such decree also would have no value. The superior Courts have time and again held that the decree of ownership regarding the Shamilat Deh land on the basis of agreement of a private person or on cognovits cannot be granted. Reference may be made to a case reported as Muhammad Tufail & 3 others vs. Muhammad Idress & 2 others [2015 SCR 107], in which it was observed in paragraph 7 as under:-- "7. .......This Court in a number of cases has observed that declaratory decree in respect of shamilat-deh land on the ground that any person seeks declaration that he has become owner of the shamilat-deh land, cannot be passed...."
In Walayat Khan's case reported as [2006 SCR 92], the Court in paragraph 5 has held that neither any declaration of title can be made on the basis of agreement-to-sell nor can a decree of title can be granted in respect of Shamlat Deh land without providing an opportunity of hearing to other co-owners.
In another case reported as Barkat Ali & another vs. Sultan Mehmood and 18 others [2009 SCR 158], it has been held as under:-- "10. From the pleadings of the parties as well as the judgments recorded by the lower Courts it appears that the suit land is admittedly Shamlat deh, about which the civil Courts have limited jurisdiction and admittedly cannot grant permanent injunction against all the share-holders who possess the land in the estate as well. Similarly unless the Shamlat deh land is partitioned by metes and bounds by the Revenue authorities no specific share can be declared to be in possession of any land-owner...."
8. Another aspect of the case in hand is that under law in every village, 20% of the Shamilat Deh land is reserved for common purpose and the same is under the control of the revenue authorities. In the instant case, the defendant-appellant without impleading the village proprietary body and the revenue authorities have obtained a collusive decree on the basis of compromise which is nullity in the eye of law and the trial Court as well as the appellate Courts have rightly set at naught the same. As said earlier, the perusal of the document referred to and relied upon by the counsel for the appellants shows that all these documents have been prepared on the strength of the decree dated 27.3.1989 and mutation No. 368 sanctioned therein. As we have also observed hereinabove that the decree dated 27.3.1989 regarding the Shamilat Deh land was collusive in nature and illegal, thus, when the decree is declared illegal, the superstructure built on the basis of that decree shall automatically fall to the ground.
9. Another plea has been raised in the pleadings by the defendant-appellant that although, the disputed land was recorded in the revenue record prior to 27.3.1989 as, {{URDU TEXT}} however, from the very first day, he was in possession of the same and there is no graveyard in the disputed land. We do n ot agree with the plea raised by the defendant-appellants that as there is no graveyard in the disputed land, thus, he is entitled to the possession of the land. We have carefully perused the revenue record of 1986 Bk. the relevant at the time of decree, wherein, khata No. 35/32, survey No. 34, measuring 17 marla {{URDU TEXT}} and survey No. 48 measuring 12 marla {{URDU TEXT}} Survey No. 95 measuring 2 kanal 15 marla {{URDU TEXT}} and survey No. 98-min, measuring 4 kanal 11 marla {{URDU TEXT}} is recorded, hence, the stance of exclusive possession prior to the date of impugned decree is not proved on record and the entries in revenue record after the date of impugned decree is of no help to the appellant. Thus, the plea of the learned counsel for the appellant is repelled.
10. It settled now that when a piece of land is reserved for a religious purpose, no one can interfere with and change the nature of such land. Reference may be made to a case reported as Azad Government & 5 others vs. Ghulam Nabi Shah [2015 SCR 816]. In the case (supra) the evacuee land was allotted to a party, however, the possession of the land was taken by the Azad Government without payment of the compensation. The allottee preferred an application before the Custodian who declared him the genuine allottee of the landed property. The writ petition was filed and on dismissal of the same, the appeal come up before this Court and the Court while hearing the appeal noticed that according to the nature of the property neither this evacuee land was available for allotment nor it could be used for any other purpose, therefore, this Court held that such property reserved for religious purpose, cannot be allotted to anyone. This Court in paragraphs 11 & 12 of the judgment held as under:-- "11. We do not feel any hesitation in holding that according to the nature of the suit land, neither is it an evacuee land available for allotment to any person, nor, it can be used for any other purpose as it is proved from the record that the land is permanently dedicated for {{URDU TEXT}} (temple). In this regard in the supra case, we have already issued direction for restoration of such like places to their original position.
12. The proposition involved in this case, in our opinion, is one of the public importance, specially, the proposition of religious rights of the State Subjects irrespective of their caste, creed or religion, is involved.
Therefore, it is felt advised that for maintaining the harmony among the people of different religious and maintaining the peace in the State, due protection and respect of religious places and symbols, is the duty of the State/Government. Under the provisions of section 3 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, Islam is the State religion which theoretically and practically is a religion of peace. The term 'Islam' grammatically means peace, protection and security. Historically, it has been undoubtedly proved that Islam has provided complete code of life which practically maintains the unprecedented peace in the society, human dignitaries and inter-religion harmony among the state subjects. In Islam, the disgrace of other religions' dignities and religious symbols or places is strictly prohibited...."
11. So far as the status of a graveyard meant for interment of dead-bodies of Muslims is concerned, being a Muslim, it is our bounded duty to protect such places and under Islamic Shariah, a land once reserved for a graveyard remains no more the property of any individual. Reference may be made to a case reported as Raja Ali Shan vs. Messers Essem Hotel Limited and others [2007 SCMR 741]. The relevant findings of the Court in paragraph 8 read as follows:-- "8. Mere reading of the aforesaid paragraphs of the plaint, it is crystal clear that petitioner solely is not owner of the land in question nor his ancestors as the land in question is situated in Shamlaat Deh which is owned by each and every owner of the village for establishing the graveyard.... ......graveyard means a place for the interment of dead bodies. See Stockton vs. Weber ILR 98 Cal. 433. The aforesaid definition of the word graveyard shows once a land is reserved by the inhabitants of village then it does not remain property of any individual...."
In another case reported as Muhammad Ramzan vs. State, etc. [PLJ 2013 SC 522], the apex Court has held that once the nature of a property as Waqf is established, no back door intrusion into the same by a former owner can be allowed to resume retrieve or reclaim it under any law worth the name. In the case reported as Zahid Farooq and another vs. Anjuman Jamia Masjid and 4 others [1995 SCMR 1584], the apex Court has held as under:-- "13. The effect of a consecration or Waqf of a property by its owner is to extinguish absolutely and forever all his rights therein. The act of consecration which is irrevocable in its character, transfer the property forever into the legal ownership of the Almighty Allah for the benefit of His creatures. On general principle, only the person in whom the ownership of the property vests can lawfully deal with it. And, as the Waqf property vests in the Almighty Allah, He alone can deal with it. It follows logically that the Mutawalli, whose status, in relation to the Waqf property is no more than that of manager or superintendent, even though he be the Waqif, cannot in any way deal with it. But the Almighty Allah may, like any other owner, deal with the Waqf property through His delegates."
12. All the Courts below have concurrently recorded the findings and arrived at the conclusion that the property once reserved for a religious purpose cannot be used for any other purpose and set aside the decree dated 27.3.1989 the mutations sanctioned, therein, and the sale-deed on the basis of which the nature of the suit land from {{URDU TEXT}} to the ordinary land has been made. It is settled law that the concurrent findings cannot be interfered with unless the same are found capricious, against law and record or based on misreading and non-reading of evidence.
13. In the light of the above perusal of the record, pleadings of the parties, it leaves no room to conclude that this is not a case of misreading or non-reading of evidence/record. We have observed hereinabove that the Courts below have rightly appreciated the record and the evidence, thus, the findings based on record and in accordance with law cannot be interfered with as laid down by this Court in a case reported as Muhammad Tufail & 3 others vs. Muhammad Idress & 2 others [2015 SCR 672], wherein it has been held as under:-- "12. We have carefully perused the whole record. Three Courts below have recorded concurrent findings of facts. There appears no misreading or non-reading of record. The trial Court as well as the first appellate Court has drawn the conclusion that the decree in favour of Muhammad Tufail and Fazal Hussain, in respect of shamilat deh land, is illegal and Sabir Hussain and Jan Muhammad are in illegal possession of the shamilat deh land and ordered that the possession be handed-over to the plaintiffs. This finding was affirmed by the High Court. It may be stated that under the relevant law, declaratory decree for ownership in respect of shamilat deh land cannot be passed by a civil Court. It was observed by this Court in the case reported as Khalid Hussain & 3 others vs. Haji Muhammad Rafique & another [PLJ 2008 SC (AJ&K) 18], as under:-- '...From the whole record it does not clearly reveal as to how much share Khalid Hussain or the appellants had in the Shamilat Deh land. As against it, it is clearly established that the parties are actively involved in occupying Shamilat Deh land without determination of their shares. The finding of the learned Judge of the High Court that Khalid Hussain and others have not specifically denied para 1 of the suit, therefore, the same is to be considered as admission on the part of Khalid Hussain and others, furnishes further support to our finding that the whole proceedings initiated before the District Judge were collusive and the District Judge, therefore, rightly dismissed the suit filed by Respondent No.'
13. According to the annexure, Ex. PA, the appellants, who are real brothers, were in illegal possession of the land bearing survey No. 916, which is shown as shamilat deh land. Muhammad Tufail and Fazal Hussain filed declaratory suit against Sabir Hussain and Jan Muhammad, the other two brothers. They filed cognovits and consent decree was passed, which is a collusive decree which could not be passed in respect of Shamilat Deh land."
Similarly, in a case reported as Kamal Hussain vs. Muhammad Shabir & others [2017 SCR 236], it has been held as under:-- "7. The defendant-appellant could not succeed to point out any misreading or non-reading of evidence, therefore, the findings of facts concurrently recorded by the Courts below cannot be disturbed or interfered with merely on the strength of the argument which does not find support from the law or record."
14. During appraisal of the record, we have noticed that Ch. Maqbool Ahmed, appellant (deceased) now represented by legal heirs was a sole appellant in the High Court and respondents No. 2 to 12 and 15 to 16 were arrayed as respondents. Now the respondents in whose favour the judgment was passed by the High Court have also preferred an appeal against the judgment. The parties have not addressed the issue at the time of arguments, however, we have ourselves noticed and now question arises whether the appeal on behalf of these appellants is maintainable or not. We do not feel to resolve the point in the instant case in view of the proposed conclusion and this point is left open to be decided in any other appropriate case, however, it may be observed that in the memo of appeal, the counsel for the appellants during the pendency of appeal have raised the plea that all the appellants who were real respondents in the High Court have entered into a compromise with the deceased-appellant and admitted his right in the suit land. Be that as it may, as we have observed hereinabove that the Shamilat Deh land in which the village whole proprietary body is a co-sharer cannot be alienated through cognovits/compromise or agreement-to sell, therefore, on this sole ground the appellant cannot be succeeded, thus, the findings on the point would be mere an academic discussion and it is settled law that no judgment can be passed for academic discussion.
15. In the light of what has been discussed above, we are of the view that without impleading the whole village proprietary body as necessary party no decree for perpetual injunction vis--vis could be granted regarding the Shamilat Deh land. The concurrent findings arrived at by the Courts below cannot be interfered by this Court when there is no misreading or non-reading of evidence on the record. The appellants also failed to substantiate any legal ground for interference in the impugned judgment.
Resultantly, finding no force in this appeal, it is hereby dismissed with no order as to costs.